Lawson v. G. D. Searle & Co.

• Decision Date: 01 October 1976
• Docket Number: No. 47724,47724
• Citation: 64 Ill.2d 543,1 Ill.Dec. 497,356 N.E.2d 779
• Court: Illinois Supreme Court
• Parties: , 1 Ill.Dec. 497 Robert H. LAWSON, Adm'r, et al., Appellees, v. G. D. SEARLE & COMPANY, Appellant.

Page 779

356 N.E.2d 779

64 Ill.2d 543, 1 Ill.Dec. 497

Robert H. LAWSON, Adm'r, et al., Appellees, v. G. D. SEARLE & COMPANY, Appellant.

No. 47724.

Supreme Court of Illinois.

Oct. 1, 1976.

Rehearing Denied Nov. 12, 1976.

Baker & McKenzie and Sidley & Austin, Chicago (Francis D. Morrissey, Thomas F. Tobin, John T. Coleman, Edward J. Zulkey, William P. Richmond, and James W. Kissel, Chicago, of counsel), for appellant.

James A. Dooley, Chicago, for appellees.

RYAN, Justice.

This action was filed in the circuit court of Cook County to recover damages for the death of Sarah Lawson and for injuries sustained by Joanne Holmes allegedly resulting from their use of defendant's contraceptive drug Enovid. The action was one of strict liability in tort. The jury returned verdicts in favor of defendant. The trial lasted for seven weeks and was vigorously contested with both sides presenting extensive evidence, including considerable expert testimony. The trial record alone consists of nearly 6,000 pages.

The appellate court reversed and remanded for a new trial on all issues, with one justice dissenting. (29 Ill.App.3d 670, 331 N.E.2d 75.) The majority determined that the jury's verdicts were against the manifest weight of the evidence. It also found that various trial errors required reversal. We find the jury's verdicts supported by substantial evidence, and that the trial errors committed were not sufficiently prejudicial as to require reversal. Consequently we reverse the appellate court.

Mrs. Lawson was 25 years old, overweight, and the mother of five children in July, 1962, when Enovid was first prescribed to correct menstrual difficulties. The prescribing physician next saw her on August 20, when she entered the hospital emergency room suffering from pain in the upper quadrant of her abdomen. She was discharged from the hospital nine days later without any symptoms. She returned to the hospital on September 1. On September 4 a clot obstructed a large vein in her leg, resulting in massive swelling of the leg. She died the next day due to multiple pulmonary emboli.

Mrs. Holmes began taking Enovid in September, 1963. In December she noticed shortness of breath, numbness in her arm and fingers, and a pain in her right shoulder. She was admitted to the hospital on December 10, 1963. She was treated with anticoagulants, hot towel packs, and leg wrappings, and was released from the hospital on January 9, 1964.

The issues presented before this court are: (1) whether the jury's verdicts in favor of defendant are against the manifest weight of the evidence; (2) whether defendant's exhibit No. 45 was properly admitted into evidence and properly submitted to the jury; (3) whether the testimony of defendant's expert, Dr. Drill, was improper because based on inadmissible hearsay; (4) whether defendant complied with certain discovery orders pursuant to Supreme Court Rule 237; and (5) whether alleged trial misconduct by defendant's counsel requires reversal.

Considering first the question of the manifest weight of the evidence, we note the instructions that were given to the jury on the theory of strict liability. Plaintiffs' instruction No. 15 stated:

'The plaintiffs, and each of them, have the burden of proving each of the following propositions:

First, that the condition of Enovid was unreasonably dangerous;

Second, that the condition of Enovid existed at the time it left the control of the defendant;

Third, that the condition of Enovid was a proximate cause of the condition of ill-being complained of in each case.'

Also given was court's instruction No. 1 as follows:

'A product faultlessly made may be deemed to be unreasonably dangerous if it is not safe for such a use that is to be expected to be made of it and no warning is given.'

The directives of these instructions constitute the standards against which the jury was to measure the evidence relating to plaintiffs' right to recover under the theory of strict liability. Special interrogatories were not submitted and general verdicts were returned, so we do not know which element contained in these instructions the jury concluded relieved defendant of liability.

The evidence was conflicting. That presented by the defendant indicated that thromboembolic episodes could occur idiopathically and that the incidence of thromboembolic episodes increases with such factors as parity, obesity, vascular abnormalities, and restricted movement. Further, Drs. Winter, Isaacs, and Drill, testifying for defendant, expressly stated that there was no relationship between the use of Enovid and the occurrence of thrombophlebitis or pulmonary emboli. Similar testimony was elicited from defendant's other expert witnesses. Plaintiffs' witnesses reached opposite conclusions. Plaintiffs argued that various case reports and clinical studies showed conclusively that there is a causal relationship between Enovid use and thromboembolic disorders.

We agree that the manifest weight of the evidence supports plaintiffs' position on this issue and rebuts defendant's contention that there is no relationship between the use of the drug Enovid and the occurrence of thrombophlebitis. If this were the only issue resolved by the general verdicts, we would conclude, as did the appellate court that the verdicts are against the manifest weight of the evidence.

However, even if the jury did find that defendant's product may cause blood clotting, under the instructions given, the jury could have refused to find that use of the drug was the proximate cause of the injuries involved in this case. There is credible evidence in the record which, if believed by the jury, would show that Mrs. Lawson's death was a result of predisposing causes, and that Mrs. Holmes' injuries did not result from a pulmonary embolism.

As noted earlier, evidence was presented which would establish that the incidence of thromboembolic episodes increases with such factors as parity, obesity, vascular abnormalities, and restricted movement. All of these factors were present in Mrs. Lawson's case. She had given birth to five children and was considerably overweight. Defendant's witness, Dr. Buckingham, stated that he believed that the prior pregnancies were the proximate cause of the pelvic vein thrombophlebitis. The autopsy revealed the presence of recanalized blood clots in the pelvic region. The jury could have believed, as defendant urged, that these clots existed prior to her use of Enovid and indicated prior vascular abnormalities or disorders. Mrs. Lawson spent nine days in the hospital during the weeks before her death. The jury could have believed that the bed rest and restricted movement during her hospital stay were a contributing factor to her thromboembolism. The doctor who performed the autopsy testified that he found blood clots in various parts of the body. Some clots were only a few days old; others may have been as much as six to eight weeks old. Although plaintiffs presented evidence which could detract from the weight of the conclusions drawn by defendant's expert witnesses, the questions of the credibility of the witnesses and weight to be given to their testimony were peculiarly within the province of the jury. Under the evidence presented, a verdict for the defendant based on the proximate cause of the illness and Mrs. Lawson's death would not be contrary to the manifest weight of the evidence.

Concerning Mrs. Holmes, there was a dispute at trial as to the exact nature of her illness. Dr. Aries, plaintiff's witness, testified that an X ray of Mrs. Holmes indicated that she had suffered an infarct in the right lower lobe of her lung. In response to a hypothetical question, he testified that 'such a hypothetical person could have sustained an embolus to the right lung most likely originating from the pelvis or from the extremities.' On cross-examination, however, Dr. Aries admitted that a condition of pneumonitis would also be consistent with his view of the X ray. Dr. Buckingham, defendant's pulmonary function witness, testified that Mrs. Holmes' condition indicated 'a pleural pneumonia rather than a pulmonary embolus.' Dr. Isaacs, also defendant's witness, testified that the hypothetical question indicated 'either a pleuresy or a pneumonitis rather than a pulmonary embolus.' Thus there was credible evidence from which the jury could have concluded that Mrs. Holmes' condition did not involve a pulmonary embolism and was not caused by ingestion of defendant's drug.

The court's instructions quoted above told the jury that Enovid could be considered unreasonably dangerous if 'it is not safe for such a use that is to be expected to be made of it and no warning is given.' This instruction parallels certain comments to section 402A of Restatement (Second) of Torts (1965). Comment H to that section states that a 'product is not in a defective condition when it is safe for normal handling and consumption,' but where the seller 'has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger * * *, and a product sold without such warning is in a defective condition.' Comment I states: 'Many products cannot possibly be made Entirely safe for all consumption, and any food or drug necessarily involves some risk of harm if only from over-consumption.' (Emphasis added.) Comment K provides:

'k. Unavoidably unsafe products.

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. * * * Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it Unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to ...